Tiny microbeads are introduced everyday into waterways from many personal care products and over the counter drugs. The plastic microbeads (often made of polyethylene or polypropylene) are recent additions in facial scrubs, soaps, toothpastes and other personal care products as abrasives or exfoliants. A single product may contain as many as 350,000 of these nanoparticles. Last week, EPA’s Janet Goodwin, Chief of the EPA Office of Wastewater’s Technology and Statistics, confirmed again that EPA lacks regulatory authority under the Clean Water Act to regulate consumer use of plastic microbeads entering wastewaters, despite growing concern over impacts to the environment.

According to Ms. Goodwin, most of the plastic microbeads that are found in wastewater effluent come from consumer use. The EPA only has authority to regulate plastic microbeads that enter wastewater from industry, either through effluent guidelines or pretreatment standards.

The plastic microbeads are smaller than five millimeters in diameter and have been found to pass through the filters of wastewater treatment plants and make their way to rivers, lakes and larger bodies of water, including the Great Lakes. EPA has plans to evaluate wastewater discharges from the manufacture of products using nanomaterials but will not have any updates until the issuance of the preliminary effluent guideline plans for 2015, sometime later in 2016.

In 2014, Illinois was the first state to pass a law to ban plastic microbeads after recognizing the dangers posed to the Great Lakes. The Illinois law provides time for personal care product companies to slowly phase out manufacture and sale of products that contain the plastic microbeads by 2018-2019. Other states also are working on similar legislation. The Personal Care Products Council is hoping a federal law can be passed to provide a uniform, consistent ban on products containing microbeads instead of the patchwork of state regulations that is emerging. See the Corporate Environmental Lawyer blog on May 7, 2015 for a summary of legislative actions taken by the State of Minnesota to manage microbeads.

While EPA is addressing nanomaterials in other areas under its TSCA authority, the lack of Clean Water Act authority will make controlling discharges containing microbeads very difficult in the absence of new legislation.